Ashok Kumar Mathur, C.J.
1. This is an appeal directed against the order passed by the learned single Judge in a Writ Petition No. 1555 of 1999 dated December 6, 1999 filed by the petitioner Madan Mohan Ghosh. The learned single Judge set aside the order of the 1st Industrial Tribunal's whereby the Tribunal permitted Mr. Amar Roy, an advocate, the President of the Employers' Association to represent the employer company before the Tribunal.
2. The petitioner workman raised an Industrial Dispute with regard to his illegal termination by the employer and accordingly the matter was referred, to the Industrial Tribunal for its adjudication by appropriate Government. The petitioner was represented by Sri S. N. Roy Chowdhury, General Secretary, Motor Workers' Union of which the petitioner was a member. An objection was raised on behalf of the petitioner against the representation of legal practitioner Sri Amar Roy to conduct the case on behalf of the respondent/company. Petitioner workman filed an application for calling some documents with regard to the existence of the Association and the representation being made by Mr. Amar Roy. It was contended that Mr. Amar Roy was neither any officer of the Company nor any member of this Association. Therefore, he cannot represent the Company. The application was rejected by the learned Judge, 1st Tribunal by his order dated October 11, 1999 and permitted Mr. Amar Roy to represent the employers before Tribunal. Therefore, aggrieved by the order the petitioner/workman filed the present writ petition.
3. The learned single Judge after reviewing the whole matter came to the conclusion that Sri Amar Roy cannot be permitted to represent the Employers' Association because of Sub-section (3) of Section 36 as Sri Roy is a lawyer and he is neither a member of the Company nor the officer of the Employers' Association. Therefore, the learned single Judge allowed the writ petition and accordingly set aside the order of the Tribunal. Aggrieved against the order passed by the learned single Judge present mandamus appeal has been preferred by the employer. We have heard the learned counsel of the parties and perused the record. The whole controversy centres round the interpretation of Section 36(1) & (2) of the Industrial Disputes Act (hereinafter referred to as Act).
4. In order to appreciate contention raised by the parties it will be useful to reproduce Section 36 of the Act which reads as follows:
'36. (1). A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by
(a) any member of the executive or other office-bearer of a registered trade union of which he is a member;
(b) any member of the executive or other office-bearer of the federation of trade unions to which the trade referred to in Clause (a) is affiliated;
(c) where the worker is not a member of any trade union by any member of the executive or other office-bearer of any trade union connected with, or by any other workman employed in the industry in which the worker is employed and authorised in such manner as may be prescribed.
(2). An employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by:
(a) an officer of an association of employers' of which he is a member;
(b) an officer of a federation of association of employers to which the association referred to in Clause (a) is affiliated;
(c) where the employer is not member of any association of employers, by an officer of any association or employers connected with or by any other employer engaged in the industry in which the employer is engaged and authorised in such manner as may be prescribed.
(3). No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act or in any other proceedings before a Court.
(4). In any proceedings before a Labour Court, Tribunal or National Tribunal a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be.'
5. A perusal of Sub-section (1) of Section 36 clearly lays down that workman can be represented by any member or office-bearer of trade union or any executive member or office-bearer of the federation in case the person is not a member of the trade union then by any other member of the executive or other office-bearer of any trade union or by a workman employed in his own industry. The employer is similarly given a representation under Sub-section (2) of Section 36 by any officer of the association of the employers or any federation or any other officer of an association of employers connected with or by any employer engaged in an industry in which the employer is engaged and authorised by such employer. Therefore, the enactment has given an equal representation to both the parties that is the workman as well as the employer.
6. In the present case the petitioner workman was being represented by one of the office-bearers of the trade union, Sri S. N. Roy Chowdhury, General Secretary of Motor Workers Union of which the petitioner is a member. Likewise the employer also authorised Sri Amar Roy the President of the employers' association known as the Assam, West Bengal, Orissa and Bihar Employers' Association (hereinafter referred to as Association) to represent before Tribunal. This was objected by the workman and seriously doubted that whether such association exists and the President is a member or not.
7. The order was also passed by the Tribunal for submission of the original record of the association. However, no such record was produced but the Tribunal on the basis of the material placed before it came to the conclusion that the said association is duly a registered association having Registration No. ES: 4135 of 1960-61 under the Act 21 of West Bengal Society Registration Act, 1961 (hereinafter referred to as Act of 61). Therefore, the Tribunal did not make any further enquiry on the subject and felt satisfied that the association is in existence and did not dispute that Sri Amar Roy is a President of the association. It was also accepted that INFAR (India) Ltd. is a bona fide member of this association.
8. In this connection it may be relevant to mention here that Section 36 of the Act had come up for interpretation before Apex Court in the case of Paradip Port Trust v. Their Workmen, : (1976)IILLJ409SC , wherein it was observed as follows:
'If a legal practitioner is appointed as an officer by a company or a corporation and is in their pay and under their control and is not a practicing advocate, the fact that he was earlier a legal practitioner or has a law degree will not stand in the way of the company being represented by him. Similarly, if a legal practitioner is an officer of an association of employers there is nothing in Section 36(4) to prevent him from appearing before a Tribunal. Again an office-bearer of a trade union or a member of its executive, eventhough he is a legal practitioner, will be entitled to represent the workmen before the Tribunal under Section 36(1) in the former capacity. The legal practitioners, in these two cases will appear in the capacity of an officer of the association in the case of an employer and in the capacity of an office-bearer of the union in the case of workmen and not in the capacity of a legal practitioner. The fact that a person is a legal practitioner will not affect the position if the qualifications specified in Sections 36(1) and 36(2) are fulfilled by him.'
9. Therefore, it is evident that any office-bearer of a trade union though he is a legal practitioner can represent workmen likewise a legal practitioner if he is an Officer of an association of the employers can also appear before the Tribunal. The Apex Court has interpreted the provision of Sections 36(1) and 36(2) and has taken the view that irrespective of fact that incumbent is a legal practitioner will not affect his position if the qualifications specified in Sections 36(1) and 36(2) are fulfilled.
10. As facts stands that Mr. Amar Roy is the President of the association of the employers, therefore, he is entitled to appear in these proceedings on behalf of the employer. The whole idea behind preventing the advocates appearing in these proceedings before Tribunal is that the matter should be sorted out between the employee and its employers, on one to one basis but if any advocate is an officer of the employers' association or any office-bearer of the trade union then just because they are legal practitioners that would not affect position for appearing before the Tribunal.
11. In the present case, the question is Sri Amar Roy who is the President of Employers' Association is 'officer' or not. A controversy is sought to be raised that the officer does not include the President of association. This does not appear to be correct interpretation becausethe dictionary meaning of the word 'officer' includes any person who holds the office. The expression as defined in CONCISE OXFORD DICTIONARY means 'holder of public, civil or ecclesiastical office, sovereign's servant or minister appointed or elected functionary'. Similarly, in WEBSTER'S NEW WORLD DICTIONARY (2nd Concise Edition) 'officer' means 'anyone holding an office or position of authority in a Government, business, society, etc. Therefore, any person who is holding the office of any society or association or authority can be included in the expression 'officer'.
12. Our attention was also invited to a definition of office- bearer in Section 2(iii) in the Industrial Disputes Act, 1947 which reads as under: 'Office-bearer' in relation to a trade union includes any member of executive thereof but does not include an auditor. Similarly, our attention was also invited to definition of officer as defined under Section 2(e) of the West Bengal Society Registration Act, 1961 whereunder this association is registered which reads 'officer' means a member of the Governing Body, the President, the Secretary or any other office-bearer of a society and includes also an employee of the society whose work is not of a purely ministerial nature. Therefore, Sri Amar Roy being the President (officer) of the association is competent to represent the employer before the Tribunal.
13. The learned single Judge has referred to a decision of the case of Kalinga Studios Ltd. v. Presiding Officer, Industrial Tribunal and Ors., 1994-II-LLJ-108 (Ori-DB), and it was observed as under:
'While examining the terms of the relationship between the legal practitioner concerned and the association of the company of which he claims to be a member, the case has to be decided on its own facts. The legal practitioner must be a regular officer of the employers' association. If, on facts, a legal practitioner is found to be a regular officer Section 36(4) would disqualify him from representing as a member of his association.'
Therefore, what is required is that one has to find out whether the incumbent representative is member of an association or not. It is essentially a question of fact and in the present case as already mentioned above the Tribunal was satisfied that Sri Amar Roy was the President of the association irrespective of the fact that he was a lawyer. Since he was a President of this association therefore, he was entitled to appear on behalf of the employers. The decision of the Orissa High Court in no way lays down the proposition contrary to what has been already laid down by the Apex Court.
14. Our attention was also invited to a decision of the Gujarat High Court by a single Bench judgment in J. B. Transport Company and Ors. v. Shankarlal @ Mavaram Nathuji Patel 2000-I-LLJ-442 (Guj). In this case, Sri S.B. Sharma, who was a General Secretary of Akhil Gujarat Employers' Association was representing the petitioner/employer being a member of the Akhil Gujarat Employers Association in his capacity as an officer of the said association. This was objected before the Tribunal and Tribunal upheld the objection; same was upheld by the learned single Judge of Gujarat High Court. However, with great respect we do not agree with the view taken by the learned Judge.
15. Any officer of the employers' association can represent like any 'office-bearer' of the trade union representing the workmen. A distinction was sought to be made between an 'officer' and an 'office-bearer'. The expression 'officer' under Section 36 has been used in the context of the employer and office-bearer in context of a trade union. The expression 'officer' will have to be read in the context where it has been used. But the same meaning will have to be given to the expression 'officer' in the context of the trade union or in context of the employers' association. The expression 'officer' cannot be given two different meanings in same section. When the officer appears in context of the employer it means a person who is office holder of the association and when the officer appears in terms of the trade union it is office-bearer of any trade union be it a President or Secretary. Therefore, with great respect we do not agree with the view taken by the Single Bench of the Gujarat High Court.
16. Our attention was also invited to a decision of Bharat Petroleum Corporation Ltd. v. The Presiding Officer, Central Government Industrial Tribunal and Ors. 1993-II-LLJ-608 (Cal-DB), where it was held that member of the executive committee of employers' association does not come within the expression 'officer' as provided under Section 36(2) of the said Act. It appears that the attention of the Hon'ble Court was not invited to a definition of an office-bearer as defined under Section 2(111) of the Industrial Disputes Act where the officebearer in relation to trade union includes a member of the executive committee thereof but does not include auditor. This definition was introduced by the amendment of the Act by the Act 36 of 1964. However, in the present case we are not concerned with the member of the executive committee of the association, we are concerned here with the President of the association. Therefore, this case also does not provide us any assistance.
17. Our attention was also invited to a decision of Rajasthan High Court in the case of Bhawani Art Handicrafts v. Gulab Singh and Ors. 1999 (82) FLR 781. In the above case the learned single Judge held that a Honorary Member or Honorary Additional Secretary of the employers' association cannot be permitted. The learned Judge found that the so called Honorary Secretary is nothing but a subterfuge and therefore it was held that said person is not entitled to represent the employers' association before the Labour Court. The decision in that case essentially centered round the question of fact that a subterfuge was employed by association by associating a lawyer as Honorary Additional Secretary of the executive committee. The learned Judge upheld the objection on facts but that is not the case here.
18. However, as against this the Karnataka High Court in the case of Hotel Ashok v. Addl. Labour Court, Bangalore and Anr. Vol. 64 FJR 1, has taken the view that an officer of the employers' association can represent the association before the Court. I Similarly, Single Bench of this Court in the case of Globe Theatre Pvt. Ltd, v. Second Labour Court, W.B. and Ors., 1987 (55) FLR 443, U.C. BANERJEE, J. (as he then was) has been taken tbe view that the Vice-President of theemployers' association can represent the employers' association before the Tribunal. Similar view has been taken by the Bombay High Court in the case of A.D. Shastri v. D.L. Patil, 1975-I-LLJ-458 (Bom-DB) and also same view has been taken by the Rajasthan High Court in the case of Daduwalla & Co. v. Industrial Tribunal 1959-I-LLJ-75 (Raj- DB).
19. Hence as a result of above discussion we are of the opinion that the view taken by thelearned single Judge is not correct. We are satisfied that Sri Amar Roy is a member of the employers' association and he is competent to represent the employers' association before the Tribunal. We set aside the order of the learned single Judge and dismiss the writ petition. No order as to costs.
Altamas Kabir, J.
20. I agree.